State Consumer Disputes Redressal Commission
Pacl India Limited vs Dr. Munish Goel on 12 June, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.78 of 2015
Date of Institution : 22.01.2015
Order Reserved on: 05.06.2017
Date of Decision : 12.06.2017
1. PACL Limited, Corporate Office at 7th Floor, Gopal Dass
Bhawan, 28 Barakhamba Road, New Delhi-110001 through its
Manager.
2. PACL Limited, Regd. Office Amber Tower, 3rd Floor, Sansar
Chand Road, Jaipur-3002004 through its Manager.
.....Appellants/opposite party nos.1 & 2
Versus
1. Dr. Munish Goel son of S.J. Goel, resident of House No.890,
Sector 7-B, Chandigarh.
2. Sh. Parveen Goel son of S.J. Goel, resident of House No.890
Section 7-B, Chandigarh.
.....Respondent nos.1&2/complainants
3. Bhole Baba Investments Promoters, SCO No.348-349, 2nd
Floor, Sector 34-A, Chandigarh through its authorized
representative.
.....Respondent no.3/opposite party no.3
First Appeal against order dated
21.07.2014 passed by the District
Consumer Disputes Redressal Forum,
S.A.S. Nagar, Mohali.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Smt. Surinder Pal Kaur, Member Present:-
For the appellants : Sh. D.K. Singal, Advocate For respondent nos.1&2 : Sh. Sandeep Bhardwaj, Advocate For respondent no.3 : Ex-parte ............................................ J.S KLAR, PRESIDING JUDICIAL MEMBER :-
Order dated 21.07.2014 of District Consumer Disputes Redressal Forum S.A.S. Nagar, Mohali (in short the 'District Forum) First Appeal No.78 of 2015 2 has been challenged in this appeal by the appellants, being contrary to law. Respondent nos.1 and 2 of this appeal are the complainants in the original complaint before the District Forum and appellants of this appeal are the opposite party nos.1 and 2 and respondent no.3 of this appeal is opposite party no.3 therein and they be referred, as such, hereinafter, as arrayed in the complaint.
2. Short facts of the complaint instituted by the complainants U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs are that they approached OP no.3 for purchasing a penthouse, being constructed by OP no.1 and 2, in their upcoming project at Zirakpur. They paid an amount of Rs.9,00,000/-, vide cheque nos.266036, 266037, 266038 drawn on State Bank of Patiala to OPs in this regard. OP no.3 gave receipt for the above amount to them on behalf of OP nos.1 and 2. Application form was also filled in by the complainant, wherein unit allotted was mentioned as A-5-PH2 at 5th and 6th floor in Nirmal Chhaya Towers at Zirakpur, costing total price of Rs.84,16,666/-, besides other charges, such as Rs.1,00,000/- for car parking, Rs.25,000/- for club membership, Rs.3,89,300/- for preferential location charges and Rs.77,860/- for interest free maintenance security. On query of complainants for delivery of possession of above house, the OPs apprised them that the date of delivery of possession would be informed through a separate letter and assured them to handover the possession till December 2011, but no such intimation was received from OPs. It was represented in the brochure (Annexure C-
6) by OP nos.1 and 2 to provide three approaching roads to the said First Appeal No.78 of 2015 3 project containing the allotted property i.e. one from Ambala- Chandigarh Highway and remaining approaching roads from VIP Road Zirakpur. No work has been done by OP nos.1 and 2 with regard to providing approachable road from Ambala-Chandigarh Highway therein, as represented in the brochure. Ambala- Chandigarh highway is the main vital road for ingress and egress to above tower. The complainants remained ready and willing to make the payment of balance amounts, but they have lost faith in the OPs due to their mis-representation. The complainants also came to know from print media and news channels that OP nos.1 and 2 were in financial scrapes. The complainants also entered into buyers agreement dated 03.01.2011 with OPs. The complainants refused to opt for the payment plan, as no specific date of handing over the possession has been mentioned in the agreement and OPs insisted upon making payment and complainants were directed to issue a cheque of Rs.5,00,000/- as security and further assured for informing about specific date of possession of the flat in order to claim the balance payment. The OPs presented the cheque just to harass the complainants. The complainants also filed one civil suit to restrain the OPs from selling the allotted flat. Civil court is still seized of the matter. The terms of the agreement are vague and complainants are not bound by the same. No mention has been made regarding date of possession and it is a serious lacuna in this case, raising the finger of deficiency in service and unfair trade practice on OPs. The complainants prayed for refund of deposited amount of Rs.10,64,000/- alongwith interest @18% per annum from the date of First Appeal No.78 of 2015 4 deposit till handing over the possession; further not to charge any interest or penalties from the complainants; further to pay compensation of Rs.5,00,000/- for mental harassment; and to pay Rs.1,00,000/- as litigation expenses.
3. Upon notice, OP nos.1 and 2 filed joint written reply and contested the complaint of the complainants vehemently. Preliminary objections were raised that complaint is barred by time under Section 24-A of C.P. Act. The complainants booked the flat on 07.10.2010 and they did not deposit the remaining instalments/dues amount within 45 days from the date of booking, as per the payment plan attached with the allotment letter and agreement to sell dated 03.01.2011. The amount of Rs.9,00,000/- deposited by them, thus, stood forfeited on the lapse of the said period. The complainants consciously filed the civil suit before the Civil Court against OPs, which is fixed for 29.07.2013. It was further averred that complainants booked the premises for commercial purposes and are not the consumers within the purview of C.P. Act. The complainants approached OPs for purchasing penthouse at Nirmal Chhaya Towers, Zirakpur, District S.A.S. Nagar, Mohali. The complainants opted for down payment at the time of booking on 18.08.2010, whereunder they were supposed to pay 10% of the basic price and 85% of the basic price plus PLC plus CPS plus club charges within 45 days from the date of booking, as per payment plant annexed with the allotment letter and agreement to sell dated 03.01.2013. As per terms and conditions of the said plant, 5% balance basic amount plus other charges was to be paid by the complainants at the time of First Appeal No.78 of 2015 5 taking possession of the unit from OPs. The rebate of 6% on the basic sale price i.e. Rs.5,37,234/- was also given to them, as per the plant opted by them. The complainants delayed in execution of sale agreement knowingly, despite insistence of OPs about it. Timely payment of instalments and other charges is the essence of the allotment. The possession of unit is subject to clause (9) to be delivered by promoter to allottee within 36 months calculated from the date of commencement of construction of the said complex and after obtaining completion/occupancy certificate from the concerned authorities. In case instalments/charges were not received within 60 days, then the earnest money would stand forfeited. The complainants have not paid the single penny other than Rs.9,00,000/- at the time of booking. One cheque of Rs.5,00,000/-, vide cheque no.681770 dated 01.08.2011 towards price of the flat was dishonored due to insufficient funds in the account of the complainants. The complaint is alleged to be not maintainable. The jurisdiction of this Forum was disputed in view of clause 18 of terms and conditions of agreement to sell dated 03.01.2011. It was averred that complainants have no cause of action to file the complaint. Civil Court is already seized of the matter, hence the complaint cannot be tried by the Forum. The complaint was contested even on merits on the above grounds. It was pleaded that total sale price of the flat was Rs.84,16,666/- and complainants deposited only an amount of Rs.9,00,000/- at the time of booking and they have defaulted in making the payment of remaining 85% of basic sale price of the flat within 45 days. The OPs have taken all the approvals from the First Appeal No.78 of 2015 6 competent authorities. Municipal Council Zirakpur issued certificate vide memo no.875 dated 14.06.2010 stating that the building plan for above said residential complex has been approved on 30.12.2008 by Chief Town Planner and approval for construction of the building has been approved by Executive officer, Municipal Council, Zirakpur on 26.06.2006. The OPs also applied for the completion certificate before the Municipal Council, Zirakpur and the said Council after inspecting the said residential complex issued the completion certificate in favour of answering OPs of this project as well. No objection certificate has also been taken by the OPs from Fire Station Office, Derabassi and Punjab Pollution Control Board on 22.08.2006 & 18.02.2008. OP nos.1 and 2 denied any deficiency in service or unfair trade practice on their part and prayed for dismissal of the complaint. OP no.3 was set ex-parte by the District Forum.
4. The complainants tendered in evidence affidavits Ex.CW- 1/1 and Ex.CW-1/2 alongwith documents Ex.C-1 to Ex.C-10 and closed the evidence. As against it, OP nos.1 and 2 tendered in evidence affidavit Ex.OP-1/1 alongwith documents Ex.OP-1 to Ex.OP-11 and closed the evidence. On conclusion of evidence and argument, the District Forum allowed the complaint of the complainants directing OPs to refund the amount of Rs.10,06,460/- with interest @12% per annum from 03.01.2011 i.e. the date of signing of agreement to sell Ex.OP-3 till realization; further to pay lump sum compensation of Rs.1,00,000/- to the complainants as compensation for mental harassment and litigation expenses. First Appeal No.78 of 2015 7 Aggrieved by above order of the District Forum, OP nos.1 and 2 have preferred this appeal against the same.
5. We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. The foremost point for adjudication in this case is as to whether the District Forum has pecuniary jurisdiction to try the complaint or not. The complainants claimed refund of the amount of Rs.10,06,460/- with interest @18% per annum and compensation of Rs.5,00,000/- for mental harassment and Rs.1,00,000/- as costs of litigation. The pecuniary jurisdiction of the District Forum under C.P. Act, 1986 is confined to the extent of value of goods or services of Rs.20,00,000/- only inclusive compensation. Section 11(1) of C.P. Act, 1986 lays down that subject to the other provisions of the Act, the District Forum shall have jurisdiction to entertain complaints, where the value of the goods or services and the compensation, if any, claimed, does not exceed Rs.20,00,000/-. Section 11(1) of C.P. Act is the important Section for adjudication of this matter in this case pertaining to pecuniary jurisdiction of the District Forum under the Act. From perusal of record and hearing the respective submissions of counsel for the parties, we find that as per para no.1 of allotment letter Ex.OP-1/1, the total value of the area sought to be purchased by the complainants from OPs is Rs.84,16,666/-. Even the application form filled in by complainants Ex.C-5, records the basic sale price as Rs.84,16,666/- of this flat. The agreement to sell Ex.C-8 on the record was also executed between the parties in this First Appeal No.78 of 2015 8 regard. Vide para no.1 of agreement to sell, the total price of the flat is recorded as Rs.84,16,666/-, which is in dispute in this case.
6. The point for adjudication emerges on this point as to whether OPs completed construction by providing the amenities to complainants or not or in the alternative the complainants are entitled to refund of the deposited amount with interest alongwith compensation or not for any deficiency of OPs. Section 11(1) of C.P. Act, makes it clear that it is the value of the goods or services and compensation, if any, claimed, which determines the pecuniary jurisdiction of the Forum. Matter has been, of late, settled by the National Commission in case titled as "Ambrish Kumar Shukla & 21 others Vs. Ferrous Infrastructure Pvt. Ltd." I(2017) CPJ- 1(NC), wherein it has been held that it is the aggregate value of goods purchased or services hired or availed of with compensation, which would determine the pecuniary jurisdiction of the Forum. The National Commission has held in para no.14 of this judgment that it is the aggregate of the value of the goods purchased or services hired or availed of, by all those numerous consumers and the total compensation, if any, claimed for all those numerous consumers, which would determine the pecuniary jurisdiction of this Commission. If the aggregate of the value of the goods purchased or the services hired or availed of by all the consumers having the same interest and the total compensation, if any, claimed for all of them comes to more than Rs.1.00 crore, the pecuniary jurisdiction would rest with this Commission alone. It has been further made understandable by the National Commission by means of illustration that if house is sold for First Appeal No.78 of 2015 9 more than Rs.1.00 crore, certain defects are found in the house and the cost of removing those defects is Rs.5,00,000/-, the complaint would have to be filed before this Commission (National Commission), the value of the services itself more than Rs.1.00 crore. From this instance quoted by the National Commission in the cited judgment, it is evident that it is the value of the goods or services with compensation which would determine the pecuniary jurisdiction of the Forum. We are not impressed with the submission of counsel for the complainants that the District Forum has pecuniary jurisdiction to refund the deposited amount due to failure of OPs in performing their part of the contract. We are of this view on the basis of law laid down in Ambrish Kumar Shukla's case (Supra) that it is the total value of the goods or services which would determine the pecuniary jurisdiction of the Forum under the Act to try the complaint. The cause of action is taken as a whole and not in fractions. The cause of action is indivisible Compensation and interest have to be taken into account in calculating the aggregate amount to determine the jurisdiction of the Forum, as per above authority. Consequently, we find that the value of the goods in this case is Rs.84,16,666/- and the pecuniary jurisdiction of the District Forum is restricted upto Rs.20,00,000/- only under Section 11(1) of the C.P. Act. The District Forum was, thus, not competent to entertain and decide the case, as per law laid down by the National Commission in Ambrish Kumar Shukla's case (Supra). Even otherwise, any material irregularity with regard to assuming pecuniary jurisdiction not vested in the First Appeal No.78 of 2015 10 Forum tantamounts to illegality, which shakes the very root of the matter.
7. The next point is as to whether this authority which has been handed down subsequently would be application in this case or not. Undoubtedly, the legislature cannot enact law with retrospective effect to take away certain rights of the citizens. However, it is clear that the Courts interprets the law and the law so interpreted applies both with retrospectively and prospectively unless it is so made clear in the judgment. The law laid down by the National Commission in above authority would apply retrospectively as well in our opinion. No contrary authority has been cited before us about this point. Consequently, we hold that the District Forum overstepped its pecuniary jurisdiction to try the case, when the total value of goods involved in this case was more than Rs.20,00,000/-. The order of the District Forum is, thus, totally violative of Section 11(1) of C.P. Act.
8. Once, we have come to this conclusion that the District Forum has no jurisdiction to try the case and as such we cannot proceed to decide this appeal on its merits. Many authorities cited by the parties on the merits of the case cannot be looked into, once the order has been passed by the Forum below without any pecuniary jurisdiction to try the complaint by violating mandatory Section 11(1) of C.P. Act, 1986.
9. As a corollary of our above discussion, we accept the appeal of the appellants and set aside the order of the District Forum and order that the complaint be returned by the District Forum S.A.S. Nagar, Mohali to the complainant for presentation before the First Appeal No.78 of 2015 11 competent Forum of law. The complainants will be entitled to seek condonation of delay for the time spent in the prosecution of this complaint before the District Forum and before this Forum in appeal. The parties are directed to appear before the District Forum on 28.07.2017, whereupon the District Forum shall return the complaint to the complainants for its presentation before the competent Forum, if they so liked.
10. The appellants had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal and further deposited the amounts of Rs.6,38,876/- and Rs.3,13,684/- in compliance with order of this Commission. These amounts, alongwith interest, which accrued thereon, if any, be remitted by the registry to the appellants of this appeal by way of crossed cheque/demand draft after expiry of period of 45 days.
11. Arguments in this appeal were heard on 05.06.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
12. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER June 12, 2017 MM